MATTER OF N 

In DEPORTATION Proceedings 

A-8584934 

Decided by Board November 9, 1959 

Cr,:me involving moral turpitude—Malicious mischief, section 692, Delaware 

Penal Code. 

Delaware malicious mischief statute (section 692, Delaware Penal Code) encompasses crimes which both do and do not involve moral turpitude. When 

record of conviction -fa',s to show with particularity that misconduct was 

inherently base or depraved. finding of moral turpitude cannot be made. 

CHARGE : 

Order: Act of 1952—Section 241(i., (4) [8 P.S.C. 1251(a) (4)1—Convicted 

of two crimes, to wit: malicious mischief and malicious mischief. 

BEFORE THE BOARD 

Discussion: An order entered by the special inquiry officer on 

July 17, 1959, provides for respondent's deportation under section 

241(a) (4) of the Immigration and Nationality Act (3 U.S.C. 1251 

(a) (4)), as a twice convicted alien. The special inquiry officer has 

certified the case to this Board for final decision (8 CFR 3.1(c) ). 

The respondent., a native and national of Poland, male, 21 years 

of age, unmarried, last entered the United States for permanent 

residence through the port of New York on November 27, 1953. He 

has been convicted on two occasions (August 1957 and December 30, 

1958) by the Municipal Court at Wilmington, Delaware, for the 

offense of malicious mischief. 

The information charging the respondent. with committing an 

offense in violation of section 692 of the Delaware Penal Code, reads 

in part as follows: "* C * with force of arms * C did unlawfully 

commit a misdemeanor, to wit: Did commit an act of malicious 

mischief at 201 South Market Street, Rest Room." The information 

Charging a violation of section 691 of the Delaware Penal Code 

charges that the respondent "did commit an act of malicious mischief by causing damage to the furnishing of the Wilmington Girls 

Club." 

The crime of malicious mischief is defined by section 692 of the 

Delaware Penal Code of 1953, as follows: 

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Whoever unlawfully, maliciously and mischievously destroys or injures any 

real or personal property, or any other thing of value, to the value of less than 

$100, shall be fined not less than $25 nor more than $500, or imprisoned not 

more than six months, or both. 

Section 691 of Title 11 of the Delaware Penal Code defines a 

similar offense except the value of the property is $100 or more and 

the penalty on conviction is loft to the discretion of the court. 

Counsel urges that the offense of malicious mischief as defined 

by the Delaware statutes does not involve moral turpitude. The 

special inquiry officer on the other hand finds that since the Delaware statutes contain the element of malice the crimes defined involve moral turpitude. 

The special inquiry officer could find no reported cases in which 

the courts of Delaware have interpreted the statutory offense of 

"malicious mischief." The statutes were added to the Delaware 

Penal Code by the Act of June 5, 1951 (48 Delaware Laws, ch. 308, 

section 1.). The special inquiry officer relies on cases decided prior 

to 1951 which are based on the common law offense of "malicious 

mischief."' These cases, in effect, hold that the mischief must be 

inspired by a malicious intent either expressed or implied. 

The State of Illinois has a statute which defiles the offense of 

"malicious mischief" in most identical terms as that of Delaware? 

We have held on two occasions that the offense defined by the Illinois statute does not necessarily or inherently involve moral turpitude under all circumstances (Matter of 7' , A-5411764 (B.I.A., 

May 16, 1947, unreported) ; Matter of M . A-6111128 (B.I.A., 

September 30, 1953, unreported)). Both the Delaware and Illinois 

statutes are extremely broad in scope, including offenses which may 

or may not involve moral turpitude. Where a criminal statute is 

divisible, it is a well -established rule that we must look to the record 

of conviction for a determination of whether the crime committed 

involves moral turpitude. 

The special inquiry officer is of the opinion that his finding of 

moral turpitude is consistent with prior reported rulings by this 

Boards We find the cases distinguishable.. We noted in Matter of 

711 (./pra 3 ) that the indictment averred that the alien did 

"maliciously and wantonly injure and destroy * * * two hogs beState v. Cubberlv, 26 Del. 100, 80 Atl. 1003 (19111 ; State v. McCollister, 

28 Dol. 301, 76 Atl. 226 (1909) ; ,ctette v. 'Fright, 25 Del. 393, 79 Atl. 399 (1911). 

2 The Illinois statute defining malicious mischief reads as follows: "Whoever willfully and maliciously destroys, injures or defaces any building or 

fixture attached thereto, without consent of the owner, or destroys, injures or 

secretes any goods or chattels of another, shall be imprisoned," etc. (Cahill's 

Illinois Revised Statutes (1929), ch. 38, section 418; Jones Illinois Statutes 

Annotated (1936), section 37-378). 

Holler of R—, 5 I. & N. Dec. 612 (B.I.A., 1954) ; Mutter of M , 3 

I. & N. Dec. 272 (ELLA., 1048). 

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longing to J B—L , by then and there stabbing, strming, 

and killing said hogs with an axe." The indictment in Master of 

 (supra s) charged the alien with "wantonly, willfully and 

maliciously attempting to destroy property by the use of explosives." 

We could determine from the indictments returned in both cases 

that the aliens were convicted of offenses perpetrated . maliciously 

and wantonly and not for acts accompanied by negligence or carelessness. 

We are unable to make such a determination in the instant case. 

The informations here under consideration merely charge the respondent with committing misdemeanors, to wit: "Did commit an 

act of malicious mischief at 201 South Market Street, Rest Room" 

(-xh. 2) ; "Did commit an act of malicious mischief by causing 

damage to the furnishing of the Wilmington Girls Club" (exh. 4). 

The statute by its very terms includes offenses which do and offenses 

which do not involve moral turpitude. The records of conviction 

fail to show with suMeient particularity that the offenses of which 

the respondent stands convicted are inherently base and vile. as 

distinguished from acts which are wrong merely because prohibited 

by law (37 Op. Atty. Gen. 293, 1933). 

We are unable'to determine 1.poin the records of conviction that 

the respondent has been convicted of offenses which necessarily involve moral turpitude. Taking the statute at its minimum, it is 

concluded that the offenses in question have not been shown to be 

crimes involving moral turpitude. An appropriate order will be 

entered. 

Order: It is directed that the order entered by the special inquiry officer on July 17, 1959, directing the alien's deportation from 

the United States pursuant to law on the charge contained in the 

order to show cause, be and the same is hereby withdrawn. 

It is further ordered that the proceedings under the order to show 

cause be and the same are hereby terminated. 

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